139 Ky. 815 | Ky. Ct. App. | 1904
Separate Opinion oe the Court by
on the Federal question involved.
Having written the opinion of the Court in this- case on the only theory upon which a majority o-f the members could agree, the deep conviction I have on the Federal question contained in the record constrains me to express, in a separate opinion, my personal views on that subject. ¡
The trial of this case, by a change of venue from Franklin County, where the indictment was found* took place in Scott County; but for reasons no doiibt entirely valid, the jury was secured from Bourbon. When the officers were about to proceed to summon the jurors, the appellant moved the Court to instruct them to summon persons without regard to political affiliation. This was objected to by the Commonwealth, and the motion overruled, the court saying that he had instructed the officers as to their duties in the premises, and he had no reason to assume they would not perform their duty. I
Two venires of one hundred persons each were-ordered. Upon the appearance of the first, composed of ninety-five men, the appellant moved that they be discharged. He: filed his own, and the affidavits of two others, to- the purport, that the officers-, had, by a prearranged system of “exclusion” and “elimination,” failed and refused to summon any person for jury duty, who was a Republican in politics, no mat
The Commonwealth objected to this motion, andj filed the affidavits of the officers denying all of the material allegations of the affidavits for the appellant, and affirmatively alleging that they had no prejudice: against him, but, on the contrary, desired to see him! have a fair and impartial trial; that the Republican party of Bourbon County was composed mostly of negroes who were not qualified for jury service, and of the whites nearly all were Federal office-holders, and thereby disqualified as jurors.
The court overruled the motion, the order reciting :• “Thereupon the court overruled the motion without any referénce to the said affidavits, and the court holds, that there is not claimed in the grounds of said< motion that said jurors are not sensible, discreet, and! sober men, and housekeepers of Bourbon County, over the age of twenty-one years, to all of which defendant excepts.”
It is clear, that the trial judge was of opinion that it was not an offense against the 14th Amendment, or a denial of the equal protection of the laws of the refendant, to exclude Republicans from the jury solely because they were Republicans, provided the selected Democrats were possessed of the statutory qualifications required for jury service. There was no decision upon the evidence offered as to whether or not, in fact, there had been the discrimination complained of, it being necessarily assumed that this was, if true, an immaterial circumstance. ;
To this, I cannot agree; it is in contravention of our State, as well as the Federal Constitution. So1 much of the 14th Amendment as is pertinent to the discussion in hand is- as follows: “ * * # Nor (shall any State) deny to any person within its jurisdiction, the equal protection of the laws.”
The Supreme Court of the United States, the final arbiter in all matters involving the Federal Constitution, has uniformly held that the exclusion from juries, grand or petit, of persons belonging to a class, for the sole reason that they belonged to such class., is, as to a member of the excluded class being tried under a charge of crime, a deprivation of the equal protection of the laws. This question has generally] arisen in cases involving the exclusion and trial of negroes. This might well be expected in the confusion of adjusting the rights of this race from their,
It is said in Carter v. Texas, 177 U. S. 443: “Whenever by any action of a State, whether through its legislative, through its courts, or through its execu-i tive or administrative officers all persons of the African race are excluded solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied him contrary to the Fourteenth Amendment of the Constitution of the. United States.” To the same purport are Strauder v. West Virginia, 100 U. S. 303; Virginia v. Rives, 100 U. S. 313; Neal v. Delaware, 103 U. S. 370; Bush v. Kentucky, 107 U. S. 110; Yick Wo v. Hopkins, 118 U. S. 356; Torrence v. Florida, 188 U. S. 519, and Rogers v. Alabama, 192 U. S. 226.
In the case of the County of Santa Clara v. Southern Pacific R. R. Company, 18 F. R. 385, Justice Field adopting in part the speech of Senator Edmunds delivered in the United States Senate when the amendment was under discussion, said: “There is no word in it that did not undergo the completest scrutiny. There is no word in it that was not scanned and intended to mean.
“This protection attends every one everywhere,, whatever be his position in society or his association with others, either for profit, improvement or pleasure. It does not leave him because of any social or. official position which he may hold, nor because hei may belong to a political body, or a religious society,, or be a member of a commercial manufacturing or¡ transportation company. It is the shield which the arm of our blessed government holds at all times over every one1, man, woman and child, in all its broad domain, wherever they may go, and in whatever relations they may be placed.”
In Yick Wo v. Hopkins, supra, the Court said: “These provisions (of the Fourteenth Amendment) are universal in their application, to all persons with-, in the territorial jurisdiction, without regard to any difference of race, of color or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”
To the proposition that, by Section 281 of the Code, we are without jurisdiction to pass upon this question because it forbids an exception to the ruling of the trial court on the organization of the jury, I reply that if the section is in the path of the full, free and fair, enforcement of the constitutional provision in.question, then it is to that extent void. Section 281 is as follows: ¡
‘ ‘ The decisions of the Court upon challenges to the panel, and for cause, upon motions to set aside an indictment, and upon motions for a new 'trial, shall not be subject to exception.” ,
It may be conceded that many utterances of thisj Court are to the effect that we have not jurisdiction! to reverse a judgment in a criminal case because of| a ruling of the trial court as to the impaneling-of thej jury; but we have never yet had before us, so far as¡ I know, any case where the question involved the provision of the Federal Constitution under consideration; nor have we ever said that, if the decision of, the trial judge on the qualification of jurors, or the organizing of the panel, was in violation of that instrument, we would not revise and correct it. To fail to do so would, in my opinion, be in contravention of thej very letter of the Constitution. Article 6 of that instrument provides as follows: “ * * * This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made,
It might have been supposed that the words I have italicized were unnecessary; — that, if the Constitution was the supreme law of the land, it would necessarily be binding on the judges of the States; but the. framers of the instrument deemed it best to place the matter beyond the realm of dispute or argument, and provided specifically the duty of the State judges in the matter of its enforcement.
But we are not without decisive authority both upon our jurisdiction and our duty on -this branch of the case. The case of Bush v. Kentucky (107 U. S. 110), bears especially upon this phase of the question.. Section 281 of the Criminal Code was contained verbatim in the old Code of Practice, and the case went up to the Supreme Court on writ of error to our court, and was reversed because it appeared that negroes,, as such, had been excluded from the grand jury who returned the indictment under which the plaintiff in error, a negro, had been tried and convicted. This ease completely answers the contention that we cannot take jurisdiction of the question as to the proper organization of the jury when the error complained of is a violation of the Federal Constitution, unless we are to occupy the anomalous position that we will refuse to reverse the judgment of the circuit court for an error when this refusal will furnish ground for a reversal of this Court by the Supreme Court of the United States.
In the case of Great Western Telegraph Company v. Burnham, 162 U. S. 339, it was held: “This court
But the appellant is not forced to resort to the Federal Constitution for the right to a fair and impartial trial; this is guaranteed to him by the Constitution of the State of Kentucky. Section 11 of that’ instrument is as follows:
“In all criminal prosecutions 'the accused has the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor. He cannot be compelled to give, evidence against1 himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the laws of the land; and in prosecutions by indictment or information, he shall have -a speedy public trial by an impartial jury of the vicinage; but the G-enera! Assembly may provide by a general law for a change of venue in such prosecutions for both the defendant and the Commonwealth, the change to be made to the most convenient county in which a fair trial can be; obtained. ’ ’ i
The provision, that the accused “shall have a speedy public trial by an impartial jury of the vicinage” is found in every constitution adopted by the¡ people of Kentucky; they are not idle words; they
The provision “but the General Assembly may provide for a change of venue in such prosecutions for both the defendant and the Commonwealth, the change to be made to the most convenient county in which a fair trial can be obtained,” is of itself an answer to the contention that a jury, who possesses the ordinary statutory requirements, is all to which the defendant is entitled. Why change the venue, unless prejudice and passion .are recognized impediments to a fair and impartial trial? Surely the framers of the constitution did not suppose that there was a county in the State in which a jury could not be obtained possessing all of the statutory qualifications. Therefore, it must be assumed that prejudice and passion, whether it be political prejudice and party pa'ssibn, or prejudice and passion of any other sort, being impediments to a fair and impartial trial in the sense that would authorize a change of venue, also constitute impediments thereto in making up the trial panel; the object in both cases being to secure 'o the accused the constitutional guaranty of a trial by an impartial jury.
I do not insist that, in ordinary criminal trials, there is any necessity for watchfulness to keep politics out of the jm-ybox. When, ordinarily, one is arraigned for crime, it is immaterial whether the jurors are of the same or an opposing political party; usually, this is a question which excites neither the interest of the accused, nor that of his counsel; but when the offense springs from an intense political contest, all becomes different; then the political complexion of the jury is all-important.
Those conversant with current history, have seen a highly civilized and generous people under stress of radical passion condemn without proof a soldier charged with a political crime, and sentenced him without mercy to a punishment worse than death; and yet when the storm had spent its force that judgment was annulled, the victim released, and all the world now knows his innocence.
To prevent such miscarriage of justice, the constitution of the nation prohibits a denial of the equal protection of the laws, and the common law, since
I do not believe that any man charged with a political offense, or with an offense originating in a political contest, who is tried by a jury composed wholly of his political opponents, can have a fair and impartial trial within the meaning of the law. Nor do I believe that it is a valid excuse to say there are no qualified jurors of the party of the accused in the county where the jury is summoned, when there are other counties in which this adverse circumstance does not exist. The securing of a fair trial under all circumstances is of more importance to the Commonwealth, than the punishment of any particular defendant, no matter what his guilt.
Nothing so surely tends to enhance the respect men' owe to the law than a fairly rooted-conviction that its judgments are the offspring of even-handed justice; and of its temple, an impartial jury is the chief corner-stone. On the other hand, nothing is so certainly productive of distrust and fear, out of which springs anarchy, as 'a well grounded suspicion that judicial procedure is tainted with partiality and indirection. That conviction forms the basis for the love of the citizen of his State in return for “the equal protection of the laws;” and this suspicion engenders the scorn and hatred which all good men entertain for that oriental system of judicature with whose decrees the chance of the dicer’s box is honest by comparison; and of this suspicion a partisan jury is the most effective promoter.
In conclusion, I am of opinion that the trial judge should have passed upon the question of fact presented by the appellant as to the summoning of the jurors, and if there'was even a well-grounded sus